Somakka (Dead) By Lrs. vs K.P.Basavaraj (D) By Lrs. on 13 June, 2022


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Supreme Court of India

Somakka (Dead) By Lrs. vs K.P.Basavaraj (D) By Lrs. on 13 June, 2022

Author: Vikram Nath

Bench: A.S. Bopanna, Vikram Nath

                                                          REPORTABLE
                              IN THE SUPREME COURT OF INDIA
                               CIVIL APPELLATE JURISDICTION


                              CIVIL APPEAL No (s). 1117 of 2009


                         SOMAKKA (DEAD) BY LRS.        …APPELLANT (S)


                                             VERSUS


                         K.P.BASAVARAJ(DEAD) BY LRS. ... RESPONDENT(S)



                                        JUDGMENT

Vikram Nath, J.

1. The appellant is the own sister of the sole

respondent. Their father Puttanna had inherited

certain properties from his father which were

ancestral properties and are described as item

nos. 1 and 2 of Schedule ‘A’ to the plaint,
Signature Not Verified

whereas property described at item no. 3 was
Digitally signed by
Rajni Mukhi
Date: 2022.06.13
12:27:36 IST
Reason:

1
alleged to be self­acquired property of Puttanna

on the basis of occupancy rights. In so far as the

property described at Schedule ‘B’, it belonged

to the respondent which the appellant claimed

to have purchased.

2. The appellant is the plaintiff in OS No. 2506

of 1991 instituted in the Court of the City Civil

Judge, Bangalore, wherein the sole defendant is

the respondent herein (brother of the appellant).

Primarily, two reliefs were claimed in the said

suit; firstly a partition and separate possession

of ¼ (one fourth) share in properties described

at item nos. 1 and 2 and ½(one half) share in

the property described in item no. 3 of Schedule

‘A’ to the plaint; the second relief prayed was for

a decree of specific performance of the

agreement and sale dated 25.05.1981 with

2
respect to the property described in Schedule ‘B’

to the plaint.

3. The claim set up by the appellant was that

properties described at item nos. 1 and 2 in

Schedule ‘A’ were ancestral properties and,

therefore, upon the death of her father in 1974,

she would be entitled to ¼ share and further

that the property described as item no.3 of

Schedule ‘A’ was exclusively occupied by her

father who had applied before the revenue

authorities for being declared as an occupant

and the same was pending at the time when her

father died. Later on, it was continued to be

prosecuted by the respondent and it was

ordered that his name be recorded as occupant

as such she would be entitled to ½ share. With

respect to the relief of specific performance of

3
contract, it was alleged that she had paid a sum

of Rs. 12,000/­ for purchasing 1 acre and 10

guntas in Survey no. 60 situated on

Dyavasandra Village, Krishnarajapura Hobli,

Bangalore South Taluk and for which an

agreement to sell dated 25.05.1981 was

executed. The respondent had placed the

appellant in possession of the said property.

Later on, he declined to execute the sale deed

despite appellant being always ready and willing

to perform her part of the obligation to the

agreement.

4. The respondent contested the suit, filed

written statement and denied averments made

in the plaint. According to the respondent his

father had already spent substantial amount on

the marriage of the appellant. She was also

4
given jewellery worth Rs. 50,000/­ and also an

additional sum of Rs. 8,000/­for establishing a

stationary­cum­coffee shop. Other averments

made in the written statement were to the effect

that the appellant had access to the savings of

her father and that she had secretly utilized the

savings of both her and her father’s in

purchasing property in the name of her

husband. In paragraph 15 of the written

statement, further details have been mentioned

with regard to the property acquired by the

appellant and also which is received from their

father.

5. The respondent, however, admitted that the

properties described at item nos. 1 and 2 of the

Schedule ‘A’ were ancestral properties. It is,

further, stated that the property described at

5
item no. 3 of Schedule ‘A’ of the plaint was

jointly cultivated by him and his father and after

the death of his father, he was exclusively

cultivating the same and upon the coming of the

Mysore (Religious and Charitable) Inams

Abolition Act, 19551, he became entitled to

occupancy rights and accordingly applied for it,

which was granted. Further, the respondent

denied the alleged agreement to sell and stated

that it was a false and fabricated document and

he never received any consideration amount as

alleged by the appellant. On such pleadings, it

was prayed that the suit be dismissed with

exemplary costs.

6. Parties led evidence, both oral and

documentary. The XIX Additional City Civil

Judge, Bangalore vide judgement and order

1 In short “Inam Act”

6
dated 02.09.2003 decreed the suit declaring that

the appellant was entitled for ¼ share in

properties described as item nos. 1 and 2 and ½

share in item no. 3. of Schedule ‘A’ and for

separate possession by metes and bounds. It,

further, directed the respondent to execute the

sale deed in respect of the property described in

Schedule ‘B’ of the plaint.

7. The respondent preferred an appeal under

Section 96 of the Code of Civil Procedure, 19082

before the High Court of Karnataka registered as

RFA No. 214 of 2004. Before the High Court, the

counsel for the appellant, gave up the relief for

specific performance. The High Court vide

judgment and order dated 19.08.2006 upheld

the ¼ share of the appellant in the property

described at item nos. 1 and 2 of Schedule ‘A’.

2 In short “CPC”

7
However, it agreed with the contention of the

respondent that the property described at item

no. 3 of Schedule ‘A” was jointly cultivated by

the defendant and his father, and therefore,

upon death of his father, defendant would get ½

share of his own and the remaining ½ share of

his father would be divided between his heirs i.e.

¼ to his daughter and ¼ to his son. Thus, the

appellant would be entitled for ¼ share in the

property described at item no. 3 of Schedule ‘A’

and not ½ share as decreed by the Trial Court.

To this limited extent the decree of the Trial

Court was modified.

8. Aggrieved by the same, the appellant has

filed the present appeal with respect to the

reduction of her share from ½ to ¼ with respect

to the property described at item no. 3 of

8
Schedule ‘A’. There is no appeal by the

respondent with respect to the ¼ share given to

the appellant by the Trial Court and affirmed by

the High Court with respect to item nos.1 and 2

of Schedule ‘A’ properties.

9. Heard learned counsel for the parties and

perused the material on record. It may be

noticed that this Court, while issuing notice vide

Order dated 30.07.2007 had confined it to the

question of shares of the parties in Item No.3 of

Schedule ‘A’ of the property.

10. The only issue thus which survives for our

consideration and adjudication is whether the

appellant is entitled to ½ share or ¼ share in

the property described at item no. 3 of Schedule

‘A’ property over which occupancy rights under

the Inam Act were claimed. Remaining claim of

9
the appellant regarding ½ share in item nos. 1

and 2 of Schedule ‘A’ and Schedule ‘B’

properties stand closed at the stage of first

appeal before the High Court.

11. The Trial Court framed six (6) issues, which

read as follows:­

“1. Whether plaintiff proves that suit property
are the joint family property of herself and
defendant?

2. Whether plaintiff proves that defendant
executed an agreement in respect of ‘B’ Schedule
property in favour of plaintiff on 25.05.81 for a sale
consideration of Rs.12,000/­?

3. Whether suit is barred by limitation?

4. Whether suit is not properly valued and
court fee paid is insufficient?

5. Whether plaintiff is entitled for suit relief?

6. What order or decree?”

12. While dealing with issue no.1, the Trial

Court records that, although, the defendant­

respondent denied the right, title and interest of

the appellant in item nos.1 and 2 of Schedule ‘A’

10
properties, but having admitted that his father

Puttanna succeeded to item nos.1 and 2, and

that they were ancestral properties, as such, the

appellant would be entitled to ¼ (one fourth)

share in item nos.1 and 2 of Schedule ‘A’

properties. This finding has been confirmed by

the High Court also in appeal and as there is no

further appeal by the respondent with respect to

item nos.1 and 2 of Schedule ‘A’ properties, the

relief granted to the appellant to that extent

stands finalized and closed.

13. Now coming to item no. 3 of Schedule ‘A’

property, it was a Devadaya Inamathi Land.

During life time of Puttanna, father of the

parties, he was cultivating the same on the basis

of Panchashala Gutta and on the coming of the

Inam Act, Puttanna filed an application for grant

11
of occupancy rights before the Special Deputy

Commissioner, Inam Abolition, Bangalore. Later

on, the said matter came up before the Land

Tribunal, Bangalore and during pendency of the

said application, Puttanna died. Thereafter, the

respondent came on record and he carried

forward the application, filed by Puttanna for

occupancy rights, which ultimately came to be

granted in his favour.

14. The respondent had set up a specific claim

that he was cultivating item no.3 of the

Schedule ‘A’ property personally and he alone

had made the application for occupancy rights

and the same being granted in his name, it

became his self­acquired property.

15. The Trial Court discussed in detail the

evidence led by the parties with regard to item

12
no.3 of the Schedule ‘A’ property. It noted that

the appellant (P.W.­1) had stated that the said

property was personally cultivated by the father

of the parties namely, Puttanna, which was an

agricultural land of the Devadaya Inamathi on

the basis of a Panchashala Gutta. Puttanna had

applied for grant of occupancy rights under the

Inam Act on 17.04.1971. However, while the

matter was pending before the Karnataka Land

Tribunal, Puttanna died. The respondent got

himself impleaded as legal representative of late

Puttanna and he was, thereafter, granted

occupancy rights by the Land Tribunal. The

Trial Court further noticed that occupancy

rights were heritable in nature and it is for this

reason that after death of Puttanna, the

respondent could get his name substituted and

was also successful in obtaining the occupancy

13
rights, but the fact remains that upon the death

of Puttanna, the item no.3 of Schedule ‘A’

property, being heritable in nature, would be

inherited by both his children i.e. the appellant

and the respondent and under law, both of them

would be entitled to ½ (half) share each. The

said property would be deemed to be self­

acquired property of Puttanna.

16. The Trial Court further considered Exts. P­2

to P­36, which were receipts of payment of

Panchashala Gutta and the revenue by

Puttanna i.e. to say that Puttanna was

throughout cultivating item no.3 of Schedule ‘A’

property on the basis of Panchashala Gutta.

Ext. P­37 was also relied upon by the Trial

Court, which was a document of the RTC extract

to show that the said land was recorded as Inam

14
land and Puttanna was cultivating the same.

Exts. P­2 to P­36 reveal that Puttanna had been

cultivating the said land since 1955

continuously. Exts. P­38 and P­39 were copies

of the applications, filed by late Puttanna before

the Special Deputy Commissioner, Inam

Abolition, Bangalore. Exts. P­40 and P­41 were

copies of the notices issued by the Revenue

Authorities calling upon him to appear for

consideration of his applications for grant of

occupancy rights. Further, Exts. P­42 and P­43

were copies of the statements given by one G.K.

Gurunath and the respondent before the Land

Tribunal, Bangalore. Ext. P­44 is the statement

of one Narasimhaiah and Ext. P­45 is the order

of the Land Tribunal, Bangalore granting

occupancy rights in favour of the respondent.

15

17. The Trial Court further proceeded to

consider the statement of the respondent, who

entered the witness box as DW­1. He had set up

a case that he was jointly cultivating item no.3

of the Schedule ‘A’ property along with his father

and, as such, after death of his father, he was

exclusively cultivating the said land. He also

stated that he had applied for grant of

occupancy rights before the Special Deputy

Commissioner and, as such, rights were granted

in his name. He denied that appellant was in

joint possession of item no.3 of Schedule ‘A’

property. He claimed the said property to be his

self­acquired.

18. The Trial Court discussed the cross­

examination of respondent (DW­1) thread­bare.

The Trial Court noticed the admission of the

16
respondent (DW­1) from his cross­examination

as follows:

“(i) Item No.3 of ‘A’ schedule property was given
to Puttanna on basis of Panchashala Gutta.

(ii) Puttanna during his life time was paying the
revenue and cultivating the said land.

(iii) Respondent had applied as legal
representative in the proceedings initiated by
Puttanna for grant of occupancy rights.

(iv) Before the Land Tribunal, respondent DW­1
has stated that his father Puttanna was cultivating
the said property and after his death, he is claiming
occupancy rights being the legal representative.”

19. The Trial Court further relied upon a

statement of one Narasimhaiah marked as Ext.

P­44, given before the Land Tribunal, wherein

he stated that he knew Puttanna, and that he

was cultivating the said land.

20. The Trial Court also noticed that even the

order granting occupancy rights, passed by the

Land Tribunal (Ext. P­45) clearly mentions that

the respondent was claiming occupancy rights

17
on basis of the fact that his father was

cultivating the land and that after his death, he

is entitled for occupancy rights being his legal

heir and representative.

21. On such material, the Trial Court came to

the conclusion that item no.3 Schedule ‘A’

property was the acquisition of Puttanna himself

and that upon his death, it would be inherited

in equal shares by his heirs being both his

children, the appellant and the respondent.

22. On the above findings the Trial Court

decreed the claim of the appellant to be having

half share in item no.3 of Schedule ‘A’ property

vide judgment dated 02.09.2003.

23. Respondent preferred an appeal before the

High Court under Section 96 CPC registered as

RFA No. 214 of 2004. Before the High Court,

18
the appellant gave up her claim regarding

specific of performance with respect to Schedule

‘B’ property. The High Court vide judgment

dated 19.08.2006 confirmed the finding relating

to ¼ share to the appellant with respect to item

nos.1 and 2 of Schedule ‘A’ properties. It,

however, went on to modify the decree of the

Trial Court relating to item no.3 of Schedule ‘A’

property by reducing the share of appellant from

½ to ¼.

24. The High Court in a very cursory and

cryptic manner, partly allowed the first appeal.

It did not consider the evidence considered by

the Trial Court. Neither did it deal with the

statements or the other documentary evidence

on record and only on a bald statement of the

respondent, which according to it, was

19
mentioned in the order of the Land Tribunal

that respondent was jointly cultivating the said

land along with his father held that it became a

joint family estate and, accordingly, reduced the

share of the appellant to ¼ (one fourth) from

1/2 (one half).

25. The only discussion made by the High

Court in the impugned judgment is reproduced

hereunder:

“The contention of the defendant that the
properties were given to plaintiff during the lifetime
of her father. Therefore, not entitled to any share in
the estate of her father by way of succession is an
untenable contention and not a triable defence.
Whatever the properties gifted to her during his
lifetime constitute separate properties of the
plaintiff and such a gift/assignment does not
deprive the right of the plaintiff to seek share by
way of succession after the demise of the father.
Item No.3 of ‘A’ schedule property is an agricultural
land and it was Devadaya Inamathi land cultivated
by the father of the plaintiff. He had made an
application in Form No.1 for grant of occupancy
rights. The defendant also made an application in
Form No.7 for grant of occupancy rights in respect
of the same land. Ex.P­5 is the order of the Land
Tribunal, in which, it categorically mentions that
the defendant had made a statement before the
Tribunal that the land was jointly cultivated by

20
himself and by his father. Therefore, it becomes a
joint family estate.

In that view, after the demise of the father, the
defendant and his father are entitled to the notional
share of 1­1/2 each and the plaintiff would be
entitled to the 1/4th share in Item No.3 of ‘A’
schedule property and not half share as claimed.”

26. Section 96 of the CPC provides for filing an

appeal from original decree. Further Order XLI

Rule 31 of the CPC provides for the contents of

the judgment of the First Appellate Court.

According to it, the judgement of the Appellate

Court shall be in writing and would include the

points for determination, the decision thereon,

the reasons for the decision and where the

decree is reversed or varied, the relief to which

the appellant is entitled. Section 96 and Order

XLI Rule 31 of the CPC are reproduced below:

“Section 96­Appeal from original decree.
(1) Save where otherwise expressly provided in the
body of this Code or by any other law for the time
being in force, an appeal shall lie from every decree

21
passed by any Court exercising original jurisdiction
to the Court authorized to hear appeals from the
decisions of such Court.

(2) An appeal may lie from an original decree
passed ex parte.

(3) No appeal shall lie from a decree passed by the
Court with the consent of parties.
(4) No appeal shall lie, except on a question of law,
from a decree in any suit of the nature cognizable
by Courts of Small Causes, when the amount or
value of the subject­matter of the original suit does
not exceed 2 [ten thousand rupees.]”
Order XLI Rule 31

“Contents, date and signature of Judgment”
The Judgment of the Appellate Court shall be in
writing and shall state­ (a) the points for
determination; (b) the decision thereon; (c)
the reasons for the decision; and (d) where the
decree appealed from is reversed or varied, the
relief to which the appellant is entitled, and shall at
the time that it is pronounced be signed and dated
by the Judge or by the Judges concurring therein.”

27. It has been a matter of debate in a catena of

decisions as to what would be the scope, power

and duty of the First Appellate Court in deciding

an appeal under Section 96 CPC read with

Order XLI Rule 31 CPC. We briefly deal with the

law on the point.

22

28. Learned Judge V.R. Krishna Iyer, J., [as

he then was a Judge of the Kerala High Court]

in 1969, while deciding the case between Kurian

Chacko vs. Varkey Ouseph3, dealing with a

similar judgment of the First Appellate Court

which had been disposed of by a brief order,

observed as follows:

“…2. An appellate court is the final court of fact
ordinarily and therefore a litigant is entitled to a
full and fair and independent consideration of the
evidence at the appellate stage. Anything less than
this is unjust to him and I have no doubt that in
the present case the learned Subordinate Judge
has fallen far short of what is expected of him as an
appellate court.”

29. Further following the above, there have

been a series of judgments by this Court;

29.1 In Santosh Hazari vs. Purushottam

Tiwari4 (relevant portion of para 15) is

reproduced below:

3 AIR 1969 Ker 316
4 (2001) 3 SCC 179 para 15

23
“15…The appellate court has jurisdiction to reverse
or affirm the findings of the Trial Court. First
appeal is a valuable right of the parties and unless
restricted by law, the whole case is therein open for
rehearing both on questions of fact and law. The
judgment of the mind and record findings
supported by reasons, on all the issues arising
along with the contentions put forth, and pressed
by the parties for decision of the appellate court. …
while reversing a finding of fact the appellate court
must come into close quarters with the reasoning
assigned by the Trial Court and then assign its own
reasons for arriving at a different finding. This
would satisfy the court hearing a further appeal
that the first appellate court had discharged the
duty expected of it.”

29.2 In H.K.N. Swami vs. Irshad Basith5,

this Court again reiterated the same principle in

paragraph 3 of the judgment:

“3. The first appeal has to be decided on facts as
well as on law. In the first appeal parties have the
right to be heard both on questions of law all issues
and decide the case by giving reasons.

Unfortunately, the High Court, in the present case
has not recorded any finding either on facts or on
law. Sitting as the first appellate court it was the
duty of the High Court to deal with all the issues
and the evidence led by the parties before recording
the finding regarding title.”

5 (2005) 10 SCC 243

24
29.3 In 2015, this Court again in Vinod

Kumar vs. Gangadhar6 considering the previous

judgment recorded its view in paras 18 and 19

which are reproduced hereunder:

“18. In our considered opinion, the High Court did
not deal with any of the submissions urged by the
appellant and/or the respondent nor it took note of
the grounds taken by the appellant in grounds of
appeal nor made any attempt to appreciate the
evidence adduced by the parties in the light of the
settled legal principles and decided case law
applicable to the issues arising in the case with a
view to find out as to whether the judgment of the
Trial Court can be sustained or not and if so, how,
and if not, why.

19. Being the first appellate court, it was the duty
of the High Court to have decided the first appeal
keeping in view the scope and powers conferred on
it under Section 96 read with Order 41 Rule 31
CPC mentioned above. It was unfortunately not
done, thereby, resulting in causing prejudice to the
appellant whose valuable right to prosecute in the
first appeal on facts and law was adversely affected
which, in turn, deprived him of a hearing in the
appeal in accordance with law. It is for this reason,
we unable to uphold the impugned judgement of
the High Court.”

29.4 Very recently, this Court in 2022 (to

which one of us, Brother Abdul Nazeer, J. was a

6 (2015) 1 SCC 391

25
member) in Manjual and others vs.

Shyamsundar and Others7, reiterated the same

view in para 8 thereof, which is reproduced

hereunder:

“8. Section 96 of the Code of Civil Procedure, 1908
(for short, ‘CPC’) provides for filing of an appeal
from the decree passed by a court of original
jurisdiction. Order 41 Rule 31 of the CPC
provides the guidelines to the appellate court for
deciding the appeal. This rule mandates that the
judgment of the appellate court shall state

(a) points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or
varied, the relief to which the appellant is entitled.

Thus, the appellate court has the jurisdiction to
reverse or affirm the findings of the Trial Court. It is
settled law that an appeal is a continuation of the
original proceedings. The appellate court’s
jurisdiction involves a rehearing of appeal on
questions of law as well as fact. The first appeal is a
valuable right, and, at that stage, all questions of
fact and law decided by the Trial Court are open for
re­consideration. The judgment of the appellate
court must, therefore, reflect conscious application
of mind and must record the court’s findings,
supported by reasons for its decision in respect of
all the issues, along with the contentions put forth
and pressed by the parties. Needless to say, the
first appellate court is required to comply with the
requirements of Order 41 Rule 31 CPC and non­
observance of these requirements lead to infirmity
in the judgment.”

7 (2022) 3 SCC 90

26

30. From the above settled legal principles on

the duty, scope and powers of the First

Appellate Court, we are of the firm view and

fully convinced that the High Court committed a

serious error in neither forming the points for

determination nor considering the evidence on

record, in particular which had been relied upon

by the Trial Court. The impugned judgment of

the High Court is thus unsustainable in law and

liable to be set aside.

31. The next question which arises is that

where the judgment of the Appellate Court is

being set aside on the ground of non­

consideration of the evidence on record, the

matter would normally be required to be

remanded to the First Appellate Court, whether

27
in the facts and circumstances this case

requires a remand. In the facts and

circumstances of the present case, we find that

the suit was instituted in the year 1991, more

than three decades ago; the evidence discussed

by the Trial Court is neither disputed nor

demolished by the learned Counsel for the

respondent. As such, we do not find any good

reason to remand the matter to the High Court.

We are of the view that in order to put a quietus

to the litigation and relieve the parties from any

further harassment, we set aside the judgment

of the High Court and confirm the judgment and

decree of the Trial Court to the extent it relates

to item no. 3 of Schedule ‘A’ property described

in the plaint, i.e. to say that the appellant and

the respondent would be entitled to ½ share

each in the said property. The Trial Court shall

28
accordingly proceed to draw out the proceedings

for final decree of partition.

32. The appeal is accordingly allowed. There

shall be no order as to costs.

………………………………..J.

[S. ABDUL NAZEER]

……………………………….J.

[VIKRAM NATH]
NEW DELHI
JUNE 13, 2022.

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